Divorce & Surrogacy & “Equitable Maternity” – by Marion TD Lewis Divorce & surrogacy collide often these days and it seems that courts around the world are having a tough time figuring out all the legal logistics. It is a sign of our times. Increasingly, infertile, wealthy married couples are turning to assisted reproduction methods, including surrogacy, in order to have children and build their families. For some of these couples, divorce ends their dreams of the perfectly created family; and it is incredible the mess that is often left behind for courts and lawyers to clean up.

A recent celebrity divorce iin the United States involving assisted reproduction and surrogacy is that of former View chat host Sherri Shepherd. Sherri and her now estranged husband apparently hired a surrogate to carry a child for them because she was experiencing fertility difficulties. Sherri has a biological son from another marriage and has been video taped talking about the surrogate child as being an anticipated younger brother for her biological son, Jeffrey. However, before the surrogate child was born, Sherri and her husband decided to end their marriage. The surrogate child shared the husband’s DNA (he was the sperm donor) but had no genetic link to Sherri. Should Sherri be legally required to pay child support for this child for the next twenty one years? Furthermore, can the court force her to put her name on the child’s birth certificate as being the child’s “mother”?

Whose child is it? This is a very complicated question. Under most state laws, it seems that at the moment of birth, the child belongs to the gestational carrier – the person who gave birth to infant and this person can contractually release her parental rights. The thing is these days it can take a lot of people to create a child. The gestational carrier can carry a child with whom she shares no genetic link whatsoever. Perhaps that is why in assisted reproduction cases such as surrogacy/pregnancy for hire scenarios, most courts follow the “Intended parents doctrine.” This means that the courts usually find that the child belongs to whomever was intended to cause his birth. But what happens when the intended parent has a change of heart as is the case of Sherri Shepard? Or for that matter what happens when the gestational carrier has a change of heart? Who gets the baby? Who is responsible for the baby? Keeping in mind that surrogacy laws vary by state (in some states like New York surrogacy is completely outlawed, for example), one could argue that the baby belongs to the person who commissioned it. It is the person who commissioned the baby who is responsible for the baby. It is they who are the “legal parents” of the baby – notwithstanding the fact that an abdomen was rented to actually house the child for nine months. Because, but for the commission of this baby by folks like Shepard and her then husband, this baby would never have been born.

The divorce obviously complicates things because Sherri Shepard shares no genetic link to this child. The baby really is her husband’s biological child and Sherri probably would have had to adopt the child after the gestational mother relinquished her rights to the child. Sherri is technically not yet the “legal parent” of this child but she clearly is the “equitable parent.” There is the technicality of having to have actually adopted the child, this is true. And even after adopting the child, a parent can always relinquish parental rights and put a child up for adoption or foster care, for example – even when they are the biological parent. But in Sherri’s case, it would be patently unjust for her to be allowed to upshtick and say “bye bye” to her husband and refuse to take care of this child. If she were the biological parent, there ARE instances where she could have relinquished her parental rights. And she probably would not have had to pay child support in such a scenario.

The fact that this is a surrogate situation, however, does seem to raise some public policy questions that are not raised when the child was created within the confines of a marriage or Relationship in a natural and biologically normal way. Planned or unplanned, a child born under traditional biological circumstances who is later relinquished by a parent is a different child from one born under the circumstances of pregnancy for hire. In the latter scenario, this was a deliberate, intentional and planned decision to create and “manufacture” a life where, but for the actions of the “intended parents” there is no possibility that this child would have been created.

Having this type of biological power is very grave and should not be treated lightly by society or the courts; allowing someone like Sherri Shepard to subsequently walk away from her responsibilities to this life she created in a deliberate, intentional and planned manner would send the wrong message to other would be “deliberate, intentional planners and ‘manufacturers’ of life” (oft times wealthy individuals in society) that they can caverlierly create life using assisted reproductive technologies and then walk away from their responsibilities to the individual they created if they no longer fancy having a baby after all.

This would be a terrible precedent for the courts to set. Sherri Shepherd’s name should be placed on the birth certificate of this child . She is both the “intended mother” and “legal mother” of this child. She is also the “equitable mother” of this child as well. The fact that her husband may have used this child as a strategic ploy to obtain financial gain from her is not, and should not be, the controlling point in this case. If the court deems his actions suspect, then there are ways to curtail his financial gain, including awarding custody to Sherri. Sherri has not exhibited any interest in having custody of this child and it may not be in the child’s best interest to live with a “mother” who does not want him or her. Thus, the courts should probably leave custody with the husband but Sherri should be ordered to pay reasonable child support on the basis that she is the child’s legal, intended and equitable mother. Read more here: http://www.pcblawfirm.com/articles/surrogacy-donation-evolving-law-assisted-reproductive-technologies/